HKSAR v. FANG CHUN

CACC 70/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 70 OF 2010

(ON APPEAL FROM HCCC NO. 415 OF 2009)

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JUDGMENT

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Hon McWalters J (giving the judgment of the Court):

Introduction

1. On 18 December 2009, the applicant pleaded guilty in the Eastern Magistrates’ Court to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The particulars of the offence alleged that on 17 July 2009 at Kwong Yuen Estate Market the applicant unlawfully trafficked in a dangerous drug, namely 136.99 grammes of a crystalline solid containing 134.10 grammes of methamphetamine hydrochloride, commonly known as ICE.

2. The applicant was committed for sentence to the High Court and on 9 February 2010 the applicant was sentenced to 8 years’ imprisonment by Barnes J (“the judge”).  On 4 March 2010, the applicant filed an application for leave to appeal against sentence.

3. On 14 April 2010, the applicant filed a Notice of Abandonment of his application for leave to appeal against sentence and on the same day his application was marked dismissed.

4. On 18 January 2013, the applicant filed an affirmation in which he applied to, in effect, treat his abandonment of his application for leave to appeal against sentence as a nullity.

The Background to the Offence

5. On the evening of 17 July 2009 officers of the Hong Kong Police Force’s Narcotics Bureau conducted an anti-narcotics operation at Kwong Yuen Estate.  They were there specifically to keep observation on a private car which had the registration number NU9995.

6. At around 20.56 hours on this evening police officers noticed the applicant alight from this motor vehicle outside Kwong Yuen Estate Market.  He was holding a yellow plastic bag and appeared to be nervous as he kept looking around while he was walking.  He was intercepted by police officers who, after revealing their identity to him, conducted a search of him.  The police officers found five plastic bags containing the dangerous drugs the subject of the charge inside the yellow plastic bag that the applicant was carrying.

7. The police officers thereupon arrested the applicant who in a subsequent cautioned video interview admitted acting as a courier of the drugs for a promised reward of $1,500 which he had not yet received.  He said that he committed the offence because he needed the money.

8. Upon analysis by the Government Chemist, the drugs were found to consist of a quantity of crystalline solid and narcotic as set out in the charge.  The street value of these drugs was estimated at $90,413.

The Background of the Applicant

9. At the time of sentence, the applicant was 35 years of age and was engaged to be married to the mother of his 4 years old child.  He had a bad criminal record having been in trouble with the law since he was 17 years of age.  Between the age of 17 years and 21 years, he committed seven offences ranging from robbery, theft and possession of dangerous drugs.  For all these offences he was fined, given suspended sentences and ordered to serve time in a Drug Addiction Treatment Centre.

10. However, in the year 2000 when he was 25 years of age, he was convicted of possession of dangerous drugs and sentenced to 18 months’ imprisonment.  In 2004 when he would have been 29 years of age he was convicted of trafficking in a dangerous drug, keeping a divan, and two counts of possession of dangerous drugs.  For all these offences, he was sentenced to a total period of 32 months’ imprisonment.

11. In 2008, he committed an assault, unlawful wounding and the assault occasioning actual bodily harm.  For these three offences he was sentenced to a total period of 6 months’ imprisonment.  He committed no further breaches of the law between his release from prison for these offences and the current offence which was committed on 17 July 2009.

The Reasons for Sentence

12. The judge recognized that she had to apply the sentencing guideline for ICE which was laid down by the Court of Appeal in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125.  In this case the Court of Appeal said that when sentencing for a quantity of 70 to 300 grammes of ICE, the sentence should be in the range of 10 to 14 years.  The offence of which the applicant was convicted involved 134.10 grammes of ICE and so fell below the half-way mark of this sentencing band.

13. However, the judge recognised the applicant had a poor criminal record and took that into account when identifying the appropriate starting point within the 10 to 14 years sentencing band.  The judge was concerned that the applicant’s criminal record was not just bad in itself but specifically he had prior convictions for both possession of and trafficking in dangerous drugs.

14. The judge received a letter from the applicant that he had written to her expressing remorse and enclosing a photograph of his young son whom he said he would teach not to follow in his father’s footsteps.

15. The judge adopted a starting point of 12 years’ imprisonment for the applicant and then reduced it by one-third to allow for his plea of guilty. The sentence she imposed upon the applicant was, therefore, one of 8 years’ imprisonment.

The Application to Treat the Abandonment as a Nullity

16. In the affirmation filed in support of his application, the applicant said that when his father passed away leaving him with no financial means to engage a lawyer he decided to abandon his application for leave to appeal his sentence. He was unfamiliar with legal procedures and his application for legal aid had been refused.  Now, he says, that with the encouragement of his family and after careful consideration of his position, he has decided to apply to treat his abandonment of his appeal as a nullity.  He says nothing further in his affirmation in respect of his state of mind at the time he filed the Notice of Abandonment but does refer to three authorities in support of his appeal.

17. He next contacted the Court on 17 October 2013 and this document contains details of the grounds on which he says he would appeal his sentence should he be allowed to do so.  However, the first two grounds of this document appear to relate to his application to treat his abandonment as a nullity.

18. The first ground explains why he abandoned his appeal.  Under this ground, he said that he did so “because I was preoccupied by the pass away of my parents and was extremely distressed and frustrated at that time”.  He also said that when he signed the document, there was no‑one from whom he could receive advice who was familiar with the law.  He maintains that had he realized he was abandoning forever his right of appeal he would not have done so and would have pursued his application for leave to appeal.

19. Under ground two, the applicant appears to be saying that in determining his application to treat his abandonment of his appeal as a nullity this Court should have regard to the merits of his grounds of appeal.

20. The only other document that has been sent to this Court is a letter from the applicant’s fiancée who in affect does no more than plead for the merciful intervention of the Court so that the applicant might be reunited with her and their child.

21. Before us today the applicant has repeated what he has set out in his affirmation and he has, somewhat tellingly, added that one of the reasons which exercised his mind at the time he abandoned his appeal was that he did not then have sufficient grounds to appeal.

Discussion

22. The legal principles relating to applications to treat an abandonment of an appeal as a nullity are well settled.  In HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1 the Court of Appeal said at paragraph 24:

“It follows that the only circumstances in which an abandoned appeal may be restored for hearing is if, as a matter of law, that abandonment may properly be treated as if it had never occurred, and the only circumstance in which that course is permissible is if that abandonment was in law a nullity.”

23. In order for this Court to conclude that the abandonment was a nullity, this Court has to be satisfied by credible evidence from the applicant that his abandonment of his application for leave to appeal was not the result of “a deliberate and informed decision”.  This requires the applicant to prove that his mind did not go with his act of abandonment.  The focus of the Court’s inquiry is to determine whether, when the applicant signed his Notice of Abandonment, he knew the nature of the document he was signing and the effect that document would have on his appeal.

24. Clearly, the test would not be satisfied if it appeared that the applicant was simply having second thoughts about the merits of proceeding with an appeal.  Convincing the Court that that is not the situation will be harder if there has been a long period between the abandonment and the application to treat the abandonment as a nullity.

25. Here, 2 years 9 months elapsed between the abandonment of the appeal and the application by the applicant to treat that abandonment as a nullity.  The grounds in support of his application that are set out in his affirmation and letter of 17 October 2013 and the matters of which he has informed us today do not persuade us that he was not aware of the nature of the document he was signing and the affect it would have on his appeal.  The claim that he was suffering distress at the death of his father is understandable but that does not establish that he was not aware of what he was doing when he signed the Notice of Abandonment or of the effect that Notice would have on his appeal.

26. That this was so is confirmed by his reference to the fact that also bearing upon his decision was the refusal by the Director of Legal Aid to grant him legal aid and the fact that he did not have the financial means to engage a lawyer and his assessment as he has informed us today that he did not have sufficient grounds of appeal.  That he took these matters into account in making his decision suggests a considered and informed approach to the filing of the Notice of Abandonment.

27. His letter dated 17 October 2013 seeks to improve his position by asserting that he misunderstood the position and believed that he could stay his appeal temporarily without surrendering for all time his right to appeal.  He has repeated that assertion before us today.  We do not find this claim by the applicant to be a credible one.

28. The applicant refers us to a number of matters in support of the merits of his appeal.  However, the legal principles relating to applications to treat an abandonment as a nullity are clear; this Court cannot have regard to the grounds of appeal in determining whether an applicant has discharged the burden that the law imposes on him of satisfying the Court that he did not intend by his Notice of Abandonment to abandon his right of appeal.  The outcome of his application to treat his abandonment as a nullity does not depend on the merits of his prospective grounds of appeal.

Conclusion

29. For the reasons given in this judgment, we are not satisfied that the applicant has discharged the burden on him of persuading us by credible evidence that when he signed his Notice of Abandonment he did not know what it was that he was signing and the effect that it would have on his appeal.  The application to treat his abandonment of his appeal as a nullity is dismissed.